[00:00:00] Speaker 04:
Case number 24-1319, United States of America versus Charles Edward Littlejohn at balance.

[00:00:07] Speaker 04:
Ms.

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Gatzel for the equivalent, Ms.

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DeWing for the appellee.

[00:00:12] Speaker 04:
Good morning.

[00:00:13] Speaker 02:
Good morning.

[00:00:14] Speaker 02:
May it please the court, Celia Gatzel on behalf of Charles Littlejohn, and I'd like to reserve two minutes for rebuttal.

[00:00:21] Speaker 03:
So can you speak up?

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Yes.

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Mr. Little John asked this court to vacate his sentence and remand the case to a different district court judge for resentencing.

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The procedure that the court undertook in this case was highly irregular and required the parties to recreate unrecorded proceedings for this appeal.

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The recreated record shows plain procedural error that the district court determined Mr. Littlejohn's sentence should be the statutory maximum before he ever appeared in court, before there was any public record at all in the case, and thereby deprived him of a fair and individualized sentencing as due process required.

[00:01:06] Speaker 02:
We know that the district court predetermined the sentence because it initiated and held two off the record meetings without her predetermination and also her in her partiality and bias.

[00:01:19] Speaker 03:
Because when you make, I just need to follow that argument.

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The judge asked you whether you were making an argument and you said, no, that's your 11, what 11 C five argument.

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that the judge was required to hold these proceedings on the record if she was considering

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a change in the plea, isn't it?

[00:01:50] Speaker 02:
Sorry, I misunderstood your rule 11C5 question.

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We do believe the judge was supposed to consider, like she was not allowed to have off the record proceedings.

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And the fact that she held off the record proceedings is evidence of her predetermination.

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We have not brought an independent rule 11.

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When you said rule 11, I thought you were referring to her participation in plea discussions, which was completely improper.

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We're not bringing an independent rule 11 like she violated rule 11 by participating in plea discussions because he doesn't want to undo his plea.

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He has never challenged his guilt.

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He was always going to plead guilty and always accepted responsibility.

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So, but we do think she violated rule.

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I suppose we didn't make the argument that she violated

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that her holding off the record proceedings were in and of themselves, error, require, and reversal.

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But we do think that they are because they just demonstrate that she approached sentencing backwards and that the proceedings were fundamentally flawed from the inception.

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So there's... Isn't the standard of review for this claim of judicial predetermination, do we review this for plain error?

[00:03:13] Speaker 02:
Um, we do think that it's that is the standard of review and we think that the error is plain because as the court said in me.

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A violation of a clearly established legal norm is plain error.

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And here, it violated a clearly established legal norm to determine someone's sentence before ever meeting them, before there's any 3553A analysis or information about that in the record.

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I hear that the district court

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obviously expressed some very strong feelings about Mr. Littlejohn's conduct.

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But what is the best evidence that it's clear or obvious that there was predetermination?

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I mean, the district court can ask about the plea deal, can probe what the government was doing.

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you know, trying to assess the Mr. Littlejohn's, the extent of his cooperation.

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I mean, these things are all part of determining an adequate or an appropriate sentence.

[00:04:19] Speaker 02:
Sure.

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And they're supposed to be done on the record.

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And criminal proceedings should be all transparent and on the record.

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And the fact that they were not done on the record is evidence that there was some wrongdoing here.

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Because otherwise, these proceedings would have been on the record.

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You must know, all right, since you're in the public defender's office, that judges often

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have off-the-record conversations, at least district court judges.

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All right?

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Sure.

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I've never seen an opinion that says that that alone is evidence of judicial misconduct or wrongdoing, particularly when you're not making an argument that you're entitled to relieve under the rules.

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So

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In my experience, when judges do things off the record, it is purely logistical or for scheduling purposes.

[00:05:26] Speaker 03:
Well, my experience is it sometimes goes further than that.

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I did a lot of litigation involving the district court judges here.

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I practiced in the district court for a number of years and I never experienced anything substantive taking place off the record in this district court in my time here.

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That's great.

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Substantive proceedings are supposed to be held on the record.

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The defendant is supposed to be there.

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He has a right to be there.

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Mr. Littlejohn didn't waive any right or

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invite any error here.

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But your whole argument, as I understand it in response to Judge Rao, is that the mere fact it was off the record indicated the judge had predetermined the sentence.

[00:06:18] Speaker 02:
We're not saying that that alone indicated that the judge predetermined the sentence.

[00:06:23] Speaker 03:
Well, she had strong views as Judge Rao mentioned.

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Right.

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I mean, she also emailed the parties before sentencing, soliciting authority to.

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give the statutory maximum, she accepted and thanked Congress for sending a letter asking for the statutory maximum off the record and never docketed the letter or her favorable response to it.

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At the sentencing hearing, she said multiple times that she was, quote, trying to help the government.

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So we just think the totality of the circumstances in this case show predetermination.

[00:07:03] Speaker 00:
Maybe I'm as guilty as she is, but most of the things you said, I have done on this court and I've seen my colleagues do as well.

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One is to give the parties a heads up in anticipation of a hearing or an oral argument about what questions I might ask, especially if it's something that hasn't been adequately briefed.

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It's not at all unheard of for us to issue an order saying the party should be prepared or argument to say, you know, is there any precedent to support X proposition?

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And that seems to me like what she did in asking, you know, is it per se unreasonable to impose the statutory maximum for someone who has accepted responsibility?

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One of the last things you mentioned, oh, where she said to the government, I'm trying to help you here.

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It's not at all uncommon that I'll ask a question to an attorney and maybe they'll kind of answer it in a way where I think they think they have to be defensive.

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And I'll just say to the attorney, this is a friendly question.

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I don't take my question as hostile just because I'm here on a bench and I'm asking you the question.

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The correct answer to my question may well help your client.

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Those are things that I see all the time.

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I don't think that they're signs of a judge who has kind of predetermined the answer to a legal question.

[00:08:18] Speaker 02:
Well, Your Honor, you just said that if you had questions and wanted a party to prepare for oral argument, you would issue an order asking the parties to be prepared to address a certain question.

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Here, the court sent an email.

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It was the Saturday before sentencing.

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And she never docketed the question.

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At the hearing, she never even put the question on the record or made any indication she had sent the parties.

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whether she should or should not have taken a more formal approach to giving the parties notice about the legal question that was on her mind.

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I'm not sure that the formality of her approach, I'm not sure why the formality of her approach

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indicates prejudging the answer to the question.

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What's the link you're seeing between formality and prejudging?

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When you get an email as a defense attorney that says, tell me why I can't give the statutory maximum, it

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indicates to you the judge is giving the statutory maximum.

[00:09:25] Speaker 04:
So the substance she was considering giving the statutory maximum.

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And obviously she needs to explain, you know, the move to the statutory maximum.

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And so she's thinking about that.

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And she says she's thinking about it.

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And then she goes through the three, you know, 355, three factors.

[00:09:46] Speaker 02:
I mean, we just submit that everything that was done off the record here and also her statements at sentencing, her interrogating of the government about his charging decision both on and off the record just shows that she did not approach sentencing with an open mind.

[00:10:06] Speaker 02:
She approached it backwards with her end goal in mind and then spent the proceedings trying to justify the sentence.

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In addition, we argue she procedurally aired by basing her upward variance on factors already accounted for in the guidelines.

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And so for this offense level, the base offense level was nine and two levels were added for his abuse of trust and use of a special skill.

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And she also added two levels for obstruction for the way he covered up his crimes and the parties had agreed to those.

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ended up at an offense level of 13.

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After his acceptance was considered and his zero point offender status was considered, his base offense level was nine.

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So his guidelines range was four to 10 months and it included all of these factors.

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Many factors were accounted for in that guidelines range.

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She then departed upward four levels for the number of tax returns and the substantial harm.

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And so that brought him back up to a fence level of 13 and a guidelines range of 12 to 18 months.

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The guidelines range, especially with that four level departure,

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considered a number of factors, most significantly the thousands of records and harm to thousands of people and his background and training and use of a special skill.

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But the sentence that she gave was,

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five times the low end of that guidelines range.

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So she went from 12 months to 60 months and the guidelines had already accounted for many of the reasons that she gave.

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Are you suggesting that under 3553 that a district court can't consider those factors because they are guideline factors?

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They can't consider them again in terms of

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the final sentence.

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I mean, that would be a strange rule for this court to adopt.

[00:12:14] Speaker 02:
Well, the court has held that a court can't reduplicate punishment accounted for in the guidelines without explaining why that punishment is inadequate.

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So here, it seemed as though she didn't recognize that the four-level departure accounted for the thousands of victims and

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thousands of tax returns and substantial harm and then instead varied upward 42 months for that same reason.

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She never explained why four levels weren't sufficient to cover that conduct.

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And the same was true for his background and experience and many of the other factors accounted for in the guidelines range.

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Colleagues have any other questions?

[00:13:02] Speaker 00:
This will take a moment.

[00:13:07] Speaker 00:
I thought your brief was excellent.

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And your presentation of your argument today, excellent as well.

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And I realized to represent your client, you have to criticize the district judge the way that you're doing it.

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That's your job.

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So this is not in any way meant to be a criticism of that.

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I was quite struck by how the district judge began the sentencing hearing, struck in an impressive way.

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I think, I'm not going to read everything from the first few paragraphs, but I do want to just kind of put in the record some of the things she said, because I think it just makes it really, really hard to agree with you that this is a judge who predetermined a sentence or who didn't take her sentencing job seriously and in a way that considers all sides of all 3553 eight factors, the ones that cut in favor of a longer sentence, the ones that don't.

[00:14:02] Speaker 00:
She said she began the hearing by saying to your client, I know this may well be the worst morning of your life or one of them.

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I want you to know that I am sympathetic to that.

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The courtroom is packed and you have the worst seat in the house.

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I'm sorry for this.

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I'm at JA 143.

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I wish more than you could possibly know that we were meeting under different circumstances, because I have read the 29 letters from your friends and family, and they uniformly speak to a person of immense intelligence, deep caring, and a wavering loyalty.

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I think anyone who has read those letters knows that to call you a friend is a privilege.

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I've already handled enough sentencing to know that you can be an upstanding person and commit bad acts.

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Unfortunately, those two things are not mutually exclusive, but they were.

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We wouldn't be here today.

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I'm saying this all up front because of this hearing.

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We've been spending quite a lot of time by citing your failures, and I have to do that because of this country.

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In order to take away someone's liberty, Judge Montgomery is requiring, thankfully, to set forth all the reasons for her decisions, and that is important because we require full transparency again.

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I'm taking away someone's liberty.

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She says, I realize that this might not provide you much solace, but I want you to know I've studied and thought and struggled deeply about your sentence.

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And there have been very few days since I took your plea that I have not thought about your sentence in some way.

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I have not heard a district judge say that in a sentencing before.

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Yesterday, I brought my laptop and all the papers in here.

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I sat at the defense table.

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I sat in the seat that you're sitting in right now to do my final preparation.

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I worked there in particular to make it impossible for me to forget that I'm going to be responsible today for taking away someone's liberty, someone with friends and families who love him, someone who has repeatedly answered the call to help others, whose actions were guided, however misguided the thought was, by a genuine belief, doing the right thing.

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Today, however, I'm, of course, in a different chair.

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My responsibility is to the oath I took.

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What you did in targeting the city president of the United States was an attack on our constitutional democracy and whatever the motivation not to punish it with the firmness of purpose with such an attack demands.

[00:15:48] Speaker 00:
I have to say, I hope I'm never sitting in the chair that your client was.

[00:15:54] Speaker 00:
But if I were, I would want to send a judge who thought about my case as hard as it sounds like Judge Reyes thought about that case and who approached it with a thoughtfulness that it seems like she approached it.

[00:16:04] Speaker 00:
I'll give you a chance to tell me why.

[00:16:06] Speaker 02:
We don't disagree that she thought a lot about the case.

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We think that she

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approached it backwards by determining a sentence and then justifying it, which we think is clear from the record.

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We also just think the record contradicts the statements that she made and that she misunderstood the magnitude of the offense, the nature of the offense, and the magnitude of the harm.

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This was in no way an attack on constitutional democracy.

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And her recitation of, and her, yes, I guess the way she characterized the crime was just exaggerated and her recitation of her judicial oath to defend the Constitution against domestic enemies and a lot of the language she used throughout sentencing comparing Mr. Littlejohn's white collar tax

[00:17:04] Speaker 02:
crime to bombs containing fentanyl sent to state actors and people raiding the Capitol building and other things like that.

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We don't disagree that she thought about the sentence.

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We just think the procedure she undertook was wrong.

[00:17:25] Speaker 04:
Thank you very much.

[00:17:52] Speaker 01:
Good morning, and may it please the court.

[00:17:55] Speaker 01:
Mr. Little John's crime was, by almost any metric, extraordinary.

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In 2017, he sought out a position as an IRS contractor with the intent of disclosing President Trump's tax returns.

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And then he succeeded, disclosing those returns and the returns of thousands of other Americans in order to effect a presidential election and to effect ideological change.

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He harmed his many victims as he committed what he knew was a serious crime.

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The district court followed proper sentencing procedures, weighed the relevant sentencing factors, and concluded that he merited a statutory maximum five-month sentence.

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Nothing about that conclusion was procedurally or substantively unreasonable, and this court should affirm.

[00:18:39] Speaker 01:
I'd like to start off by picking up with defense counsel's predetermination argument in this case.

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As Judge Rao noted, that claim is reviewed for plain air here today.

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But in any event, the record doesn't bear out a claim of predetermination, no matter the standard of review.

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Mr. Little John has pointed to two bodies of evidence to suggest that the district court approached his sentencing proceeding with something less than an open mind before hearing his arguments and the facts presented at that hearing and deciding upon what sentence to impose.

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The first camp of evidence is a

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is a distorted version of a claim of free plea negotiation judicial pressure.

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But as this court's questions reflected in argument just now, there's an analytical mismatch between the claim that he seems to be advancing

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with regards to the rule 11C1 issue, potentially, and a true claim of predetermination here.

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To be clear, the government doesn't see a rule 11C1 violation on this record, suggesting that the district court was engaged in plea negotiations.

[00:19:42] Speaker 01:
But even if that had been the case, and there were a plain case of such judicial interference with negotiations, the remedy for that would be for Mr. Littlejohn to be able to withdraw his plea.

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As this court just heard, he has no interest in doing so.

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What he seeks to do is to transform those events through a form of legal alchemy into evidence that the district court knew from the outset what it was going to sentence him to.

[00:20:06] Speaker 01:
But that is simply an analytical mismatch.

[00:20:09] Speaker 01:
Meanwhile.

[00:20:10] Speaker 04:
What do you make of your friend on the other side's arguments that the off the record nature of some of these discussions was just

[00:20:21] Speaker 04:
in itself, or maybe not just in itself, but one of the primary indicators of predetermination.

[00:20:26] Speaker 01:
So two points to that, Judge Rao.

[00:20:28] Speaker 01:
I think the first point is, as Judge Rogers notes, district courts often do have off-the-record discussions with counsel about various matters in that case.

[00:20:37] Speaker 01:
Now, some of those, it is likely more- Substantive matters.

[00:20:41] Speaker 01:
Right.

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And I was going to say, in some of those matters, it is more advisable to have them on the record.

[00:20:45] Speaker 01:
And to be clear, I think it probably would have been advisable to have these discussions on the record.

[00:20:49] Speaker 01:
That, however, doesn't show that the district court had closed off her mind as to what the proper sentence should be in this case.

[00:20:55] Speaker 01:
Again, there's that sort of analytical mismatch.

[00:20:58] Speaker 01:
I do think it's understandable also, just kind of from a broader perspective, as to how these in-camera conversations came to occur.

[00:21:05] Speaker 01:
Although I still agree that it would have been advisable to have them off the record, it's important to note that this case generated a huge amount of media attention in the district court.

[00:21:14] Speaker 01:
And the district and rule 11C2 contemplates that a plea agreement might be disclosed to the district court in camera.

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Rule 11C5 then recognizes that the district court might reject the plea agreement in camera.

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And I think together those give you some understanding of why a district court might have a colloquy as to the substance of the plea agreement in camera as occurred here.

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So the only part that I think is even maybe inadvisable here is the fact that this wasn't done on the record.

[00:21:41] Speaker 01:
I don't think there's anything else even

[00:21:43] Speaker 01:
arguably procedurally unsound in the district court's approach.

[00:21:47] Speaker 01:
And again, the fact that this was off the record is an evidence of predetermination, as Mr. Littlejohn would need to make out not just a claim of predetermination, but a plain case of predetermination.

[00:21:57] Speaker 03:
Other than requesting remand for resentencing for a different judge, do you understand appellant to be making a plain

[00:22:10] Speaker 03:
error argument in terms of the appearance of lack of partiality.

[00:22:22] Speaker 01:
I don't understand the appellant to have made some sort of due process judicial bias argument.

[00:22:28] Speaker 03:
I'm talking the due process.

[00:22:29] Speaker 03:
I'm talking about the Supreme Court's view of plain error.

[00:22:36] Speaker 03:
When an appellate court

[00:22:38] Speaker 03:
can find plain error.

[00:22:41] Speaker 03:
And one of the grounds that the Supreme Court has repeatedly recognized is when the appearance of impropriety leads the appellate court, depending on how the appellate court frames it, a concern about the appearance of partiality and

[00:23:08] Speaker 03:
unfair, predetermined violations.

[00:23:11] Speaker 03:
And as counsel says, this sentencing caused a lot of public attention.

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The courtroom, I gather, was packed.

[00:23:25] Speaker 03:
So I looked for that argument, but I didn't see it except in terms of why this court should send the matter back.

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for resensing before a different judge.

[00:23:39] Speaker 03:
And there, of course, the burden, as your brief points out, under Florida is very high.

[00:23:45] Speaker 01:
I haven't seen any sort of freestanding argument of that kind.

[00:23:50] Speaker 01:
For what it's worth on the predetermination point, I'd note that after the pre-plea conferences, the district court statements at every turn made clear that it had not yet made a sentencing decision.

[00:24:01] Speaker 01:
In the email that opposing counsel mentioned, where the district court asked about the permissibility of a statutory maximum sentence in this case,

[00:24:09] Speaker 01:
The district court explicitly stated, I have not yet made a sentencing decision.

[00:24:13] Speaker 01:
Not only that, that email was sent after the government had filed its sentencing memorandum requesting the statutory maximum sentence in this case.

[00:24:22] Speaker 01:
So that email didn't come out of the blue.

[00:24:24] Speaker 01:
It wasn't unprompted.

[00:24:25] Speaker 01:
It was in response to the government's sentencing memorandum.

[00:24:27] Speaker 01:
Even at sentencing, the district court had questions for the government asking how can it pose the statutory maximum sentence that we sought here given, for example, Mr. Littlejohn's cooperation with the government's investigation, his acceptance of responsibility.

[00:24:43] Speaker 01:
At bottom, the district court didn't enter this case with a closed mind.

[00:24:47] Speaker 01:
The other thing that I would discuss with this court briefly is the question as to whether the district court gave an adequate explanation for its sentence here.

[00:24:55] Speaker 01:
Think by any metric that it did.

[00:24:57] Speaker 01:
It recognized specific characteristics of Mr. Littlejohn's offense that are by any means extraordinary and are not accounted for by the guidelines range.

[00:25:06] Speaker 01:
We note several of these in our brief, but I would offer four of them for this court's consideration.

[00:25:11] Speaker 01:
First, Mr. Littlejohn's crime was ideological.

[00:25:13] Speaker 01:
It was done based on his beliefs about how this country should run.

[00:25:16] Speaker 01:
That's not a factor accounted for in the guidelines range.

[00:25:19] Speaker 01:
Second, he targeted the president.

[00:25:22] Speaker 01:
That factor was also not accounted for in the guidelines range.

[00:25:25] Speaker 01:
Third, his crime was willful.

[00:25:27] Speaker 01:
Now, opposing counsel noted how his background was accounted for in the guidelines range.

[00:25:32] Speaker 01:
But what it wasn't fully accounted for was that Mr. Littlejohn had experienced a nuanced, unusual professional experience with tax returns and a sensitivity to the personal information in there and the real harm that could be caused if that information was leaked to news outlets, as had occurred in this case.

[00:25:49] Speaker 01:
So in other words, not only did he know that he was violating the law, he knew that his crime was going to have a real world tangible impact on his victims.

[00:25:57] Speaker 01:
And that was also not accounted for by the guidelines.

[00:26:00] Speaker 01:
Finally, Mr. Littlejohn's crime unfolded over a series of years.

[00:26:05] Speaker 01:
He took the job as an IRS contractor in 2017 and then spent two years coming up with a complicated and technologically sophisticated means to smuggle tax returns out of the IRS without detection and provide them to two media outlets.

[00:26:19] Speaker 01:
The guidelines also did not account for that calculated and multi-year scheme.

[00:26:24] Speaker 01:
If this court has no further questions, the government's content to rest on its briefs.

[00:26:28] Speaker 01:
Also happy to answer any questions.

[00:26:31] Speaker 04:
Any further questions?

[00:26:33] Speaker 04:
Okay.

[00:26:34] Speaker 01:
Thank you.

[00:26:38] Speaker 04:
This will give you two minutes for rebuttal.

[00:26:43] Speaker 02:
Thank you.

[00:26:43] Speaker 02:
I just want to make two points.

[00:26:46] Speaker 02:
One is that the appearance of impropriety in this case was very strong.

[00:26:51] Speaker 02:
And it's difficult to show predetermination.

[00:26:54] Speaker 02:
No judge is going to just say, I determined your sentence is 60 points at the outset of a case.

[00:26:59] Speaker 02:
So what we're arguing, as Judge Rogers pointed out, is that the appearance of impropriety tainted the proceedings and tainted the sentencing hearing.

[00:27:09] Speaker 02:
in this case.

[00:27:10] Speaker 02:
And then the second point I want to make is that even if she gave, we don't disagree that she gave reasons for a variance.

[00:27:18] Speaker 02:
We think that the reasons that she gave cannot bear the weight of the magnitude of the variance that she gave from four to 10, a guidelines range of four to 10 months to 60, that the reasons that she gave just simply couldn't bear the weight.

[00:27:35] Speaker 02:
And if the court has no further questions.

[00:27:38] Speaker 04:
Thank you.

[00:27:39] Speaker 04:
Thank you, Ms.

[00:27:40] Speaker 04:
Russell.

[00:27:40] Speaker 02:
Case is submitted.